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It seems to be a no-brainer for President George W. Bush to nominate White House Counsel Alberto Gonzales to the Supreme Court. After all, Bush has already appointed Gonzales to four different legal positions in less than a decade. In 1995, then-Texas Gov. Bush named Gonzales, a partner at Houston’s Vinson & Elkins, as his gubernatorial counsel. In 1997, Bush made him Texas secretary of state, and the following year he appointed Gonzales to his first judicial post — a seat on the Texas Supreme Court. Finally, in 2001, Gonzales became White House counsel. Gonzales came to Washington before Bush’s inauguration as part of the administration’s transition team, and he is one of the few people who sees the president just about every working day. In an administration in which loyalty and closeness to the president are highly valued, Gonzales, 47, scores well on just about every count. In addition to enjoying the president’s confidence, Gonzales has gotten good reviews within the administration for his work as presidential counsel in two very challenging years. And it’s no secret that Bush would like to make history by naming the nation’s first Hispanic Supreme Court justice. Gonzales, who declined comment for this story, has said in the past that he is not interested in a Supreme Court appointment. And some conservatives close to the administration are expressing serious concerns about his possible nomination, fearing that Gonzales would not line up with the Court’s conservative bloc on issues like abortion and affirmative action. Still, Gonzales, the Harvard-educated son of Mexican-American migrant workers, is widely considered to be among the front-runners for the first high court vacancy that arises during Bush’s years in office. “He is very able, very common-sensical, level-headed and unflappable,” says C. Boyden Gray, who was White House counsel under the first President Bush and who spearheads a group that lobbies for the current president’s judicial nominees. “He has everything that a good Supreme Court justice should have.” Gonzales’ personal story is compelling. The second of eight children, he grew up in a home without hot running water or a telephone. He joined the Air Force out of high school, then switched from the Air Force Academy to Rice University in Houston. He graduated from Harvard Law School in 1982 and became the first Hispanic partner at Vinson & Elkins, where he spent 13 years. There’s no doubt that, as White House counsel, Gonzales has established plenty of conservative credentials. He has carved out a strong niche in favor of executive and attorney-client privilege. He led the administration’s successful effort to withhold from Congress documents concerning Vice President Dick Cheney’s energy task force, as well as the decision not to hand over D.C. Circuit nominee Miguel Estrada’s working papers from the Office the Solicitor General. Gonzales has had a key role in crafting the administration’s anti-terrorism strategy. He wrote the president’s executive order authorizing the use of military tribunals to try alleged terrorists and was the point man in the White House in setting up the Department of Homeland Security and interpreting the USA Patriot Act. Early on, Gonzales cheered conservatives and irked liberals by reducing the role of the American Bar Association in federal judicial selection and by advising the president to nominate a roster of largely conservative appeals court nominees. But the irony of a possible Gonzales appointment is that he would probably draw more flak from the right than from the left. Liberals are quietly saying that although Gonzales is far from their ideal nominee, other possible appointees are more troubling. To conservatives who care about affirmative action and abortion, Gonzales is widely viewed as a compromiser, or worse. Conservative activists, who generally have been very pleased with Bush’s appeals court nominees, are skittish about Gonzales’ opinions in several cases on the Texas court in 2000 involving teen-age girls seeking abortions. In those cases, Gonzales gave a broad interpretation to exceptions to a parental-notification requirement in a recently passed and ambiguous state law. Conservatives were also unhappy to read in recent newspaper accounts that Gonzales was among administration officials who advocated a moderate approach to the University of Michigan affirmative action case. This approach rejects the racial preferences granted by the university, but does not rule out all efforts to take race into account in admissions. The amicus curiae brief filed by the administration in January was widely seen as just such a compromise. “The reports are that the Department of Justice sent a brief to the White House that was much better than the brief that was filed, and the reports are that this was partly due to the influence of Judge Gonzales,” says Roger Clegg, general counsel of the D.C.-based Center for Equal Opportunity and a foe of affirmative action. “That certainly makes me nervous.” Another conservative legal thinker says, “It’s very unlikely that social conservatives will actively support a Gonzales nomination. He may in fact draw opposition from conservatives, based both on questions about his role in the Jane Doe [abortion notification] cases and on the reports that he weakened the administration’s position in the Michigan case. There’s a lot of concern out there about his judicial philosophy.” In a Los Angeles Times interview two years ago, Gonzales said that, in hiring decisions, “[p]ersonally, I’m not offended that race is a factor. But it should never be the overriding factor or the most important factor.” Gonzales’ record in his less than two years on the Texas Supreme Court is generally viewed as moderate. In addition to the parental-notification cases, he wrote an opinion in 2000 that held that the Texas Department of Transportation could be sued by the survivors of a man killed in an automobile accident, even though the department itself was not found to be negligent. Gonzales’ opinion in Texas Department of Transportation v. Able found the department subject to suit because it had entered a joint enterprise with another state agency that was found negligent. Justice Priscilla Owen, a conservative who is a current nominee for the 5th Circuit, dissented. Gray, the former White House counsel, dismisses the objections of his fellow conservatives. “I don’t regard him as an unreliable conservative,” says Gray. “You can never precisely predict one’s degree of conservatism, but I am confident that Gonzales is not a liberal. He will probably tend to look more at the facts of each case rather than try to define some sweeping principle, but over the long haul, the result is going to be much the same.” Gray says one can tell a great deal about a potential nominee from the associates that he hires. Here he gives Gonzales very high marks. “He has picked a crackerjack conservative staff [for the White House counsel's office],” says Gray. “To me, that’s probative of his inclinations.”

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